Winston v. Davis

• Decision Date: 10 December 1971
• Docket Number: No. 37901,37901
• Citation: 187 Neb. 522,192 N.W.2d 413
• Parties: Thomas J. WINSTON, Appellee, v. Clois Wayman DAVIS, Jr., City of Omaha, a Municipal Corporation, Appellants, Metropolitan Utilities District, a Municipal Corporation, Intervenor-Appellee.
• Court: Nebraska Supreme Court

Page 413

192 N.W.2d 413

187 Neb. 522

Thomas J. WINSTON, Appellee, v. Clois Wayman DAVIS, Jr., City of Omaha, a Municipal Corporation, Appellants Metropolitan Utilities District, a Municipal Corporation, Intervenor-Appellee.

No. 37901.

Supreme Court of Nebraska.

Dec. 10, 1971.

Syllabus by the Court

1. A verdict may be set aside as excessive only when it is so clearly exorbitant as to indicate it was the result of passion, prejudice, or mistake, or it is clear that the jury disregarded the evidence on controlling rules of law.

2. When a new trial is sought on the ground of misconduct by the jury, the finding of the trial court will not be set aside unless the evidence of misconduct is clear and convincing.

3. Where a motion for a new trial presents a question of fact concerning the regularity of the jury's deliberations, the trial court becomes the trier of disputed facts with reference thereto, and its decision thereon will not be disturbed on appeal unless clearly wrong.

4. A statute granting the right-of-way to the driver of an emergency vehicle, over other drivers using the highway, does not relieve him from the responsibility of driving with due regard for the safety of all persons on the highway, and does not protect him from the consequences of arbitrarily exercising such right-of-way.

5. The driver of a vehicle upon a highway shall yield the right-of-way to law enforcement vehicles when operated on official business and the driver thereof sounds audible signal by bell, siren, or exhaust whistle. This provision shall not operate to relieve the driver of a law enforcement vehicle from the duty to drive with due regard for the safety of all persons using the highway nor shall it protect the driver of any such vehicle from the consequence of an arbitrary exercise of such right-of-way.

Herbert M. Fitle, James Fellows, George S. Selders, Jr., Omaha, for appellants.

Lathrop, Albracht & Dolan, S. J. Albracht, Michael P. Cavel, Omaha, for Thomas J. Winston.

C. S. Brubaker, Omaha, for Metropolitan Utilities Dist.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON and CLINTON, JJ.

WHITE, Chief Justice.

In this intersection automobile accident a police cruiser car of the defendant City of Omaha, while chasing a speeder known to be living in the vicinity, went through a stop sign and collided in an intersection with the plaintiff's motorcycle. From a jury verdict and judgment of $18,601, the defendant City of Omaha appeals claiming excessiveness in the verdict, misconduct of the jury in its deliberations, and error in the instructions.

Plaintiff sustained four fractured front teeth, cuts in his lower lip, one of which went completely through the skin, facial abrasions, and inch-long deep laceration of the tongue, and abrasions of his chest, shoulder, and back. The evidence as to his out-of-pocket expense and loss of earnings and medical, dental, and hospital expense sustains a finding of $3,601. The evidence shows a 10-day period of hospitalization and will sustain a finding that the plaintiff's speech has been impeded as the result of the deep scarring of his tongue and that he has permanent facial scars which will continue to be a source of embarrassment to him. The city's attempt to color match the cases of O'Brien v. J. I. Case Co., 140 Neb. 847, 2 N.W.2d 107; James v. Hayden Bros., 97 Neb. 619, 150 N.W. 1013, and other cases in inapposite. The area of pecuniary allowances for pain and suffering is a highly subjective area. We find no analogy in the order cases. Modern conditions allow a permissible different response to facial scars and disfigurement. Also, the impact of inflationary conditions renders the color of past decisions to this area less visible. In this case, inflationary considerations alone destroy the invitation to exercise the rightously passionate judicial response demanded as a requirement for setting aside a jury verdict. See, Remmenga v. Selk, 152 Neb. 625, 42 N.W.2d 186; Johnson v. Schrepf, 154 Neb. 317, 47 N.W.2d 853; Rueger v. Hawks, 150 Neb. 834, 36 N.W.2d 236. We find no merit to this contention.

The city's attack upon the misconduct of the jury is two pronged. The first is an assertion of a coercively compelled verdict. This claim rests upon the hearsay testimony of two jurors concerning a speculative communication from the bailiff to the foreman or from the foreman alone allegedly used as pressure against three of the dissenting jurors, after 2 days of deliberation with the vote standing 8 to 4 or 9 to 3 in favor of the plaintiff. We need not explore any of the refinements of the historic reluctance of courts to invade from hindsight the absolute independence and integrity of jury deliberations. The hearsay testimony of the two jurors is directly refuted and denied by the bailiff and the foreman whose version was undoubtedly accepted by the trial judge in exercising his discretion in refusing to grant a new trial. The evidence of misconduct of the jury must be clear and convincing and the lower court's decision as to disputed facts and reference thereto will not be disturbed on appeal unless clearly wrong or constituting an abuse of discretion on the trial court's part. Haarberg v. Schneider, 174 Neb. 334, 117 N.W.2d 796. There is no merit to this contention.

The other challenge is based upon a controversy arising in the heated discussion of taking the final votes in arriving at the 10 to 2 verdict in the case. It appears that the votes for the plaintiff in the 2 days of deliberation had increased from a majority of 8 to 4 to 9 to 3. The most that we can gather from the rather vague testimony in this area is that the three dissenting jurors agreed that one of them would go over to the majority. This is not an agreement in advance to abide by a majority vote when and if taken. It is not a compromise verdict in the sense of a quotient verdict (agreeing in advance to an averaging of amounts). On the contrary once the continued and increasing majority was known to the jurors, the response in the case at bar was nothing more than the typical and legitimate pressure of a majority view upon the minority jurors. After continuous discussion the three dissenting jurors in the case at bar agreed that one of them would go over to the majority in order to reach a final verdict. We see no misconduct of the jury in this situation. Fortunately, this very distinction in an almost identical situation was passed on in Boddeker v. Olschewske 127 Tex. 598, 94 S.W.2d 730. The court in that case stated as follows: 'The agreement * * * condemned was one made in advance when it was not known how the majority would vote. An agreement made after it became known on which side the majority had voted, the effect of which was that the minority would defer to the majority and make the vote unanimous, does not constitute misconduct.' We find no merit to this contention.

A city policeman, driving a cruiser car, was chasing a known speeder who lived in the vicinity where the accident occurred. The evidence shows that he was traveling at a speed beyond the speed limit and went through a stop sign immediately prior to the time of the intersection accident involved in this case. The duties and responsibilities of a driver of an emergency vehicle are the critical issues in this case. The trial court fully instructed upon all of the applicable statutes to this situation. Then in instruction No. 15, following NJI No. 7.04, the trial court gave the following instruction: 'Ordinarily, the driver of a vehicle about to enter a highway protected by a stop sign must stop his vehicle, look for approaching traffic on the protected highway, and permit all vehicles to pass which are at such a distance and traveling at such a speed that it would be imprudent or obviously dangerous for him to proceed into the intersection. If there is a vehicle approaching on the protected highway, the vehicle entering such highway must wait until the approaching vehicle has passed, unless a prudent person would have reasonable ground to believe that such vehicle is so far distant from the intersection and traveling at such a speed that he could safely enter in advance...